First National Bank v. Henderson

McCLELLAN, J. The appellant brought this action against the appellee to recover damages alleged to have resulted to the plaintiff because of the defendant’s breach of the contract (signed by both plaintiff and defendant, with others) reproduced: with the report of this appeal. The court below gave effect in its rulings to the conclusion that the defendant had made no promise, assumed no obligation upon which the breaches assigned in the complaint, original and as amended, could be .predicated. Our conclusion accords with that prevailing in the trial court. The first, second, third, and fourth counts of the original complaint assign breaches of the respective obligations expressed in the fourth subdivision of paragraph 2 of the contract. Count A of the. amended complaint assigns breaches of respective obligations expresséd in the second, third, and fourth subdivisions of paragraph 2 of the contract. In the amendment filed October 6, 1915, the breaches assigned are predicated of respective provisions of subdivision 4 of paragraph 2 of the contract. [396] The fate of this appeal depends, as did the result below, upon the construction of the contract. It is the intention of the parties to the contract that must be given effect. The provisions of the second paragraph of the contract exclude the possibility of an interpretation that H. C. Henderson (defendant) made any promise or assumed any obligation to meet the stipulations upon which the breaches are laid in the original and amended complaint. The performance of the contract in those respects was alone obligatory on the Alabama Harness Company, a corporation. The second paragraph only assumes to express the promise and obligation of that corporate entity. It is true the defendant and the corporation are nominated among the “parties of the second partbut the use of that phrase could have no effect to impose upon the defendant an obligation or obligations the instrument as a whole clearly shows to have been assumed by one only of the “parties of the second part.” The phrase, as well as the one referring to the “parties of the first part,” in its common use, is suggested by convenience and is descriptive merely. Usually, it serves to save the renaming of contracting parties. Whenever its descriptive effect contradicts the intent of the parties as shown by the instrument otherwise, it is not regarded as of sufficient strength to control the judicial judgment.-See Sanders v. Betts, 7 Wend. (N. Y.) 287; Mogk v. Peterson, 75 Cal. 499, 500, 17 Pac. 446; Fairchild v. Lynch, 42 N. Y. Super. Ct, 265, 277-279. In this contract, paragraph 2 did not undertake to employ the phrase to describe the person or entity to be bound in the respects therein stipulated. On the contrary, the corporation was named as the entity bound thereby. In the third and fourth paragraphs of the contract the general designation is of the “parties of the second part;” thereby quite clearly evincing, if anything more were needed, an intent to discriminate between the Alabama Harness Company, one only of the parties of the second part, and the corporation and two others elsewhere therein described as the parties of the second part. We can find nothing in the instrument to indicate any purpose to impose on Henderson the obligations of a guarantor or surety for the Alabama Harness Company. Code, § 2503, cannot, of course, operate to impose obligations not assumed by the party to be bound. ' The judgment must be affirmed. Affirmed. Anderson, C. J., and Sayre and Gardner, JJ., concur.